Supreme Court, President Trump, Federalist Society discussed on Background Briefing
There is a great deal of disquiet. I think about the supreme court, and it's been growing over the is to sort of question, whether or not these justices political operatives in robes, and do you think that that's at stake here that this would appear to be ruling that would if data goes the way that the press reports predicting that they considered on the court will rule in favor of Trump administration that this oh little apparent legal justification for this that it will be seen as a rule of political. Partisan move, and you know, if the scales left allies, those left will full of. Well, it is true that this census has previously asked about citizenship that question came off the fences somewhere in the nineteen fifties. So adding citizenship question is not per se partisan or on hurt her. It's just the problem with the case. And with the Trump administration's position here is that it looks like Ross is not telling the truth about why they're adding this and if the supreme court upholds it along. Partisan lines that really unfortunate. I think Roberts will chief Justice Roberts will do his best to try and avoid that he he very much wants the court to be nonpartisan. And he has only one vote, but it's a significant vote. And I think he will try to make the court look less partisan. If he can't. But how could you make it less palms and win we've seen such pilots in behavior in terms of stacking the court, we have the federal society providing lists of supreme court and throughout all of the federal bench. We had the fact that Abacha's pick America didn't get hearing. We had an eight member supreme court for the last year of the bombers administration second term, and there's nothing in the country that says president economic pick some Justice in first three full year term. So that was pretty brazen. And the extent to which Leonard Leah seems to be the sort of known scree here in the one of my powerful people behind the scenes in Washington. Scholley all of that is going on it. I mean, let's be realistic. No, I agree. I think that the federalist society has had an enormous influence on the judiciary. It's very deliberate. It was very. Conscious, and it's unfortunate. And I I don't know how we put that genie back in the bottle. But I know that the court doesn't want to be seen as political. And I know that she just Roberts doesn't and they own the best hope is that some of the justices when they get up there, and are sworn in tend to disappoint those who thought they knew how they would rule, but we don't know that yet. It's too early. It's certainly too early to know with Kevin off. And as I say, I know that Robert it's not early. He's been there for more than ten years. But he definitely wants the court not to look has political as the federalist society would like it. So I still think I still think there's hope so, but how I know difficult to go with a full record of the last few. Decades. But what would be the the kind of ratio those that will put on the court by. Say Republican presidents in the hope that they would really conservative way conversely, liberal presence and hope that they would rule in a liberal way. How often would they surprise betrayed disappointed is in? How was disappointing in Warren? And I believe in Brennan and Brennan, right? And and I think Stevens did made an didn't go from the move from the right to the left as well. Yes. Yeah. He was a disappointment to Ford I believe and Suter was a disappointment in terms of being put on by a Republican president and then becoming being more moderate, maybe even more progressive. That's what prompted the federalist society to get in there and to try and avoid those so-called mistakes since then it hasn't happened that often. And so that's. That's to my mind unfortunate. I mean, I I don't think we want to be run by the federalist society. But for now. They do have a lot of power. But hasn't also the center of gravity move to the right because when they keep talking about, you know, the liberal side and the conservative side, and that's the way that that's usually described. But I don't think even any of the socal liberals on the coat anything. It's like as liberal goodbye. Shalot douglas. I mean hasn't Brennan Brennan right hasn't really the center of gravity actually, moved to the right in any case. I believe that's true. Yes. I agree. But nuts. I mean, I think that the liberals so-called liberals on the court that we have now are not that far removed from the Brennan's in the marshalls maybe slightly, but not that much. So what about suggest is what I think is. So sad about our whole conversation. You, and I are having is that I think it's unfortunate that we are labelling are justices, you know, with a political bias, and we didn't we did that to some extent in the past. But not nearly as much as now, I don't think in the past we paid as much attention as we do. Now to who appointed what president appointed someone and I think it's unfortunate trend that we're currently the subject is. So do you think we'll reach a point where we'll have a emboldened right wing or even far right wing that will be able to avoid electoral consequences, and possibly unpalatable agenda. Simply by stacking. The coats ask me that again, do I do think we reach a point where because you'll have an right? Wing court that the normal procedures of governance through the legislative branch would be avoided said they won't have to in other words, they went today with electoral consequences, and unpalatable agenda legislatively that would otherwise not get through does that even get even more conservative. Right. Right. And then and to the point where normally the legislative process where agenda is assistant judge. But because of the power of of the courts, then a less democratic and less palatable agenda could eventually become low. I don't believe. So I think that one of the most significant features of our constitution, and our system is that the judges have life tenure and independence, and that independence has often has always been really important, and it allows the judge or Justice who gets on the court to not worry about political consequences for his rulings, and that has always been a very important feature. I you know, I hope that it will continue to be well there was a period though, when during the depression when if. Took of he was very frustrated that what we considered necessary, but perhaps radical moves because of the the dire state of the economy of the society, he was butting heads with the supreme court that was flooding is legislative efforts, and he considered packing the courts, the some talk amongst Democrats now that maybe that's the I think a couple of candidates running for president even talked about it. Assurance. It's interesting. I mean, it it's always surprising to people to learn that the constitution doesn't it requires that the be supreme court. But it never says how many judges or justices should be on it. And it started out when it was first created to have only six and that number varied over time. And finally by the new deal, it was nine and then as you said Roosevelt wanted to pack the court, but everyone object rejected that and said, no, that's that's much to political. And I think that suggestions for court packing now or enlarging the court. I think we'll be similarly rejected and should be we we're gonna do everything we can to try and get the court to be less political not more political. It's hard. I agree with your concern. It is troubling. But I don't think the answer is to just keep adding more justices. We'll just in closing what do you make the suggestion that maybe not having the president of point in in the Senate confirm but having sort of some kind of rotating pool with lower court's justices. Choose who goes on the court Justice judges who have been picked by the president and confirmed by the Senate start picking one of the. Yeah. Exactly. Well, yeah, there's one themselves. Right. There's a man. That the maybe the the lower courts could sort of nominate peop- rotate. Yeah. I don't think that solves the problem. But I I would have to think more about it. But, but again, it sounds like I mean, if I understand what you're suggesting what the suggestion is these judges who are on the lower courts are also selected by the president from by the Senate, but it may be better. There are things we should probably think about what the supreme court and one of the possibilities is term limits. So that they're not on their you know, until they're ninety. Yeah. But that's the complicated matter too. Because we we have to be careful with if we do any tinkering with the courts. The feature of life tenure and judicial independence is remarkably important, and we have to be really careful not jeopardize. It was his block. I think you much for joining us today. Thank you. My pleasure. And again, I be speaking. Listen Lovelock is professor of Lord Jochen universities lowest center, where she teaches controversial federal courts communication and a seminar on the supreme court and books include inside the supreme court the institution and its procedures and supreme court politics the institution and its procedures. We gotta take a brief station break back looking into today's defying of the five pm deadline in Washington by the treasury department to have the IRS hand at Trump's tax for tens..